Freedom of Religion and the Secular State: Religious Accommodation

I don’t think it’s much if any exaggeration to say that the most important issue when discussing freedom of religion and the secular state is what happens when the secular laws and the religious laws clash. This is where the rubber meets the road, and where we really see what it means to have a secular state. So, this is the part of Blackford’s book that I was most interested in.

Blackford’s take on this is essentially this: The agreement between the secular state and religions is that the secular state handles the worldly and the religions handle the otherworldly. Thus, the secular state must legislate only on the consideration of worldly concerns. Thus, the laws they institute reflect and promote those worldly concerns, and must be applied to provide those worldly concerns. Thus, if they infringe on religious practice since they are not aimed at restricting religious practice they must still be considered worldly, and thus perfectly within the purview of the secular state to make regardless of the religious implications. Thus, religions must demonstrate a reason sufficient to the concerns of the secular state in order to get themselves exempted from it, which means that they must provide an overwhelming secular reason for the exemption. Thus, in general, religions must follow the secular laws unless they can give an exceptionally strong secular reason for doing so.

In a sense, for Blackford this isn’t as problematic as it might sound, because based on his very liberal and individualistic philosophical commitments he expects the State to stay out of a lot of things that might cause problems with religious practice. For example, he talks about an exemption for drug use not being required because the State shouldn’t be restricting that choice as well. However, those that are not so strongly liberal or individualistic will find that this is, in fact, quite a difference from how existing liberal democracies generally work. Is it justified?

Recall the starting point: to keep the peace, the State gives otherworldly concerns over to religions, while it restricts itself to the worldly. It seems to me that any time a secular law restricts religious practice, the State is thus breaking that agreement. Blackford, of course, agrees that doing it intentionally is clearly unacceptable — you can’t make a religious practice illegal because you want to kill that religion — but I would argue that doing it blindly out of a deliberate ignorance of religious practice is just as bad, if not worse. At least in the former case one can see where the opposition is and fight it as a clearly invalid encroachment on freedom of religion, but the blind impositions run the risk of simply running roughshod over religions without ever having any idea what it is actually doing, eliminating some otherworldly options without ever realizing that that is what one is doing. And if one eventually appeals back to the original starting point to say that completely eliminating a religion violates the initial agreement, it ultimately becomes quite reasonable to say that the agreement was violating long before that point.

So I take the exact opposite position to Blackford’s: religions must be accommodated and given exemptions from secular impacts unless there is a strong secular reason to include them in the law.

Let’s see how this could shake out in practice, using Locke’s cattle example that Blackford relies on:

1) If the religious practice does not fit the reasoning for why the law needs to be enacted in the first place, the religious practice must be exempt from it. So, if a law was raised against eating beef due to, say, concerns about obesity, but the slaughter of cattle in the religious practice isn’t for consumption, then the religious practice must be exempt. A better example might be serving communion wine to minors. Many jurisdictions have this as a law, but this is to avoid the perils of underage heavy drinking; the small amount in the religious ceremony has no risk of that, and so should be exempt.

2) If the secular reason for the law is not strong enough to overcome freedom of religion, then the religious practice must be exempted from the law. Thus, if the state enacted a ban on cattle slaughter to allow for there to be more to be exported in order to increase the GNP and thus slightly improve the economy, it would seem that this is insufficient a reason to interfere with religious practice. Thus, the religious practice should be exempted.

3) If the religious practice fits the purpose of the law, and the reason for the law is strong enough to overcome religious freedom, then the religious practice should not be exempted. A case might be made, for example, that if a slaughter and ban was put in place to combat mad cow disease, which has a great impact on the health of others, then the religious exemption should not be allowed. In general, once the impacts of the exemption greatly affect too many people not of that religion it is a prime candidate to be a law where no exemptions.

Blackford asks for a strong secular reason before religious practices are granted exemptions for laws. I submit that they have one by default: the very principles that Blackford uses to justify the separation of Church and State in the first place. Thus, in order to apply laws that restrict religious practice the State must provide a reason at least equal to that one, or else the religious practices must be granted exemptions … or else we don’t really have a separation of Church and State at all.

Blackford does take a stab at this by arguing that exempting religions can increase discord and resentment, which is not likely to increase the peace. This is a weak argument because it can be seen that doing anything that someone doesn’t like is likely to cause resentment and discord. The real key, as we saw in the post on morality, is to identify what the reason is for the exceptions and exemptions and differences, and so for the State to be able to appeal to a sufficiently strong worldly reason for doing what it is doing. For the religious exemptions, it has it by appealing to the whole reason there was this separation in the first place. This, then, should be all the convincing people need to accept it, and if they don’t then it isn’t a rational, secularly valid resentment … unless they can muster an argument of similar strength.

Ultimately, I argue that by the principles that lead us to leave worldly things to the State and otherworldly things to religion, it must be presumed that religious practices are exempted from secular laws, and that the State must give an overwhelming secular reason to overturn that presumption. The State, then, cannot simply argue that they want to include religious practices in the law, but that they must include religious practices in that law. Blackford’s proposal, to me, violates the basic principles he uses to justify the separation of Church and State, and so risks destroying it altogether. If the State is willing to interfere blindly in otherworldly affairs, then the Church must get involved in the State to ensure that its interference is at least not blind. Thus, if we want to preserve the separation of Church and State, the State must be very careful when and how it interferes with the Church and thus the Church must be very careful in when and how it interferes with the State.

There is much more to say on this topic, of course, but this I think suffices for now to get the discussion off the ground. I will make one more post summarizing my overall thoughts on the book, to bookend the discussion.

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